1.The applicant was charged with two counts in Molo Criminal Case No. 2704 of 2018. The first count was giving false information to a person employed in the public service contrary to section 129 (a) of the Penal Code while the second count was mining without a licence contrary to section 202(1) of the Mining Act No. 12 of 2016.
2.The applicant pleaded not guilty, and the matter proceeded to trial on February 12, 2020, August 6, 2020, November 25, 2020, February 11, 2021and September 15, 2021before Hon. E. Nderitu- Chief Magistrate. The applicant was subsequently put on his defence on December 2, 2021.
3.In an application for revision by way of a letter to this court, the applicant is not only aggrieved by the ruling of the trial court that put him on his defence but also the proceedings of February 11, 2021which he says visited a massive travesty of justice upon him. The letter dated December 4, 2021written by the Applicant’s lawyer seeks a review of the proceedings of February 11, 2021and the ruling of the court issued on December 2, 2021.
4.The applicant writes that when the matter came up on February 11, 2021, the prosecution presented two witnesses i.e., Nabil Adamjee as PW8 and Jacob Muchai as PW9. Despite a strong protest from the defence, the applicant says PW9, who is the investigating officer was allowed to produce PEXH 2, a contested joint venture agreement dated May 8, 2017(hereinafter ‘the Agreement’) purportedly entered into between PW8 and the applicant.
5.The applicant says that the agreement, purportedly drawn by an advocate named Orina Erastus Menge is a forgery and he requested that the same be produced by its drawer so that thedefence could get an opportunity to challenge its validity through cross-examination, but the trial court overruled his objection and allowed its production.
6.The applicant contends that the agreement heavily implicates him in relation to the charge of mining without a licence. He argues that the court’s decision on February 11, 2021severely prejudiced him and the production of the agreement heavily tilted the ruling of the Trial court towards finding that he had a case to answer.
7.The applicant decries having been charged with trumped up charges instead of being treated as a whistle-blower of PW8’s illegal mining activities yet, instead the Prosecution had PW8 testify as its witness.
8.The State opposed the application through the affidavit of Annastacia Mumbe - Prosecution Counsel. The State’s position is that a court may not entertain a request for revision of a finding, sentence, or order of the Subordinate court if the requesting party did not appeal even though he or she was able to do so. It cites section 364 (5) of the Criminal Procedure Code and the case of Republic v Mohamed Rage Shide  eKLR.
9.The State contends that the High Court can only exercise revisionary powers set out in section 364 of the Criminal Procedure Code if the subordinate court orders or proceedings are found to be incorrect, illegal, marred by impropriety or generally irregular; grounds it says have not been demonstrated in this case.
10.To the State, the most appropriate recourse for the applicant would have been to file an appeal and not a review. The State believes that no prejudice has been occasioned to the applicant by the proceedings of February 11, 2021since the Applicant’s counsel was allowed to cross examine PW9 about PEXH 2 and that the applicant can call Advocate Orina Rastus Menge during defence hearing and challenge the validity of PEX2.
11.The State further contends that the hearing of the case before the trial court is still ongoing and that the current application has caused immense delays. It prays that theapplication be dismissed.
12.The applicant filed submissions dated October 25, 2021. Although the Application relates to the proceedings of February 11, 2022 and the ruling on case to answer, I note that the applicant’s submissions have delved into the entire proceedings before the trial court.
13.Essentially, the applicant argues that the prosecution did not prove either of the two counts. As to count i, the applicant submits that he made a truthful report to the police about motor vehicles transporting bauxite without proper documentation. This he contends was confirmed by PW6, PW12 and PW13 while PW2, PW3, PW4 and PW5 associated the said motor vehicles with PW8.
14.The applicant cites the cases of Mbogo Samwel Mungai HCR Appeal No. 57 of 2004 and Michael Wamwongo Karongo v Republic  eKLR in which the courts, reasoned that to constitute an offence of giving false information under section 129 of the Penal code, the giver of the information must know it is false. The applicant further submits that his report that the mined bauxite belonged to Olulunga Mining and Industries Limited was also truthful, since PW8 testified that although the license had expired, the area from where it was mined exclusively belonged Olulunga Mining and Industries Limited pending renewal of their license.
15.On count ii, the applicant contends that the prosecution ought to have established that he participated in activities defined as mining under the Mining Act. According to the applicant the testimony of PW2, PW3, PW4 and PW5 was to the effect that it was PW8 who was involved in mining activities. The applicant argues that if PW6 implicated Ololunga Mining Industries, all the directors and the company ought to have been charged. He submits that the evidence of the two PW7s was to the effect that he -the applicant had complained about another person mining in an area reserved for Ololunga Mining Ltd.
16.It is, however, the evidence of PW8 and PW9 that is most relevant to this Application. PW8 is the person the applicant believes ought to have been charged with the offence while PW9 was the Investigating Officer in the matter. The applicant is particularly aggrieved by the production of PEXH2 -the Agreement by PW9 and the two witnesses’ reliance on it.
17.The applicant submits that the said PEXH 2 holds no evidential value since it is a contrived document that ought to have been authenticated by the maker and should therefore be disregarded by thecourt. The applicant thus contends that the burden of proving facts which justify the drawing of the inference of guilt is on the prosecution and that he therefore ought to be acquitted.
18.The chronology of events before the Trial court is that applicant objected to the production PEXH2 on the ground that its maker had not been called to produce it. The ruling by the trial magistrate reads as follows:I have duly considered the objection to the document and agreement entered into between the accused and PW8 and obtained by the current witness in the course of investigations. The defense counsel have duly cross-examined PW8, a party to the same and the current witness being the I.O and having obtained same in the cause (sic) of investigations is competent to produce same the objection is disallowed.
19.The prosecution’s witness proceeded to produce a copy of the said agreement after which again, theapplicant objected and insisted on production of the original or a certified copy thereof. The trial court noted this objection and upheld it.
20.In asking that the court review the proceedings of the trial court on February 11, 2022and the finding of a case to answer, the Applicant is invoking both the supervisory jurisdiction of the High Court given under article 165(6) of the Constitution as well as the power for revision by the High Court given under section 362 of the Criminal Procedure Code which provides:The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.
21.In the instant case, the court is called to revise the correctness, legality and/or propriety of admitting the agreement without calling its maker and the subsequent finding that the prosecution had established a prima facie case against the applicant.
22.I will first address the objection raised by the State to these revision proceedings, which is a preliminary issue. The State is invoking the provisions of section 364(5) of the Criminal Procedure Code which provides as follows:(5)When an appeal lies from a finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the insistence of the party who could have appealed
23.Accordingly, the first issue for determination is whether an appeal lies from the two rulings of the Trial Court: Admitting the agreement and on the finding of a case to answer.
24.There is no provision in the Kenyan Criminal Procedure Code to guide the filing of interlocutory appeals in criminal matters. Indeed sections 347 and 379 of the Criminal Procedure Code only provide for an appeal upon conviction. Accordingly, the practice established by the Kenyan Courts has been that interlocutory appeals should only be permitted where the trial court made an order in the course of the trial which violated the appellant’s fundamental rights. This was the principle set out in Thomas Patrick Gilbert Cholmondeley v Republic  eKLR where the Court of Appeal, gave the reasons for allowing an interlocutory appeal as follows:
25.The court however cautioned against the filing of interlocutory appeals in criminal trials reasoning that:
27.The instant case does not disclose any violation of the applicant’s fundamental right by the trial court. Accordingly, an appeal does not arise as a matter of right or by virtue of the exception given in the above cited authorities. The application for revision is therefore not barred by section 364(5) of the Penal Code and I will consider the application on its merits.
28.The second issue is whether the admission of the agreement into evidence is a decision amenable to the discretionary revision powers of this court. The applicant objected to the production of the document on the basis that the Prosecution did not call its maker. The trial courtwas of the view that one of the parties to the agreement was a witness to the said agreement and that the investigating officer had obtained it in the course of investigations and overruled the objection.
30.In Mark Lloyd Steveson v R eKLR, I had this to say about this issue:
31.While this court has revisionary powers, such power is not to be applied to nit-pick proceedings before subordinate court. In my view, this case represents a case where it would be a lot more fruitful for the applicant to let the trial conclude and then prefer an appeal if aggrieved by the final decision. He would have the benefit of placing before the High Court, the trial magistrate’s thinking on the points he raises here – chiefly whether the charge sheet raises any offence in view of the evidence presented, and secondly, whether the Agreement admitted into evidence is properly authenticated and whether it is of sufficient probative value in the case. At that stage, he will have the advantage of raising the question whether the prosecution marshalled sufficient admissible evidence to prove the charge beyond reasonable doubt.
32.As things stand, the applicant is requesting the court to review a finding of a trial court that there was prima facie case sufficient to put him on his defence. In doing so, theapplicant solely relies on his argument that the agreement produced in the trial court was wrongly admitted in evidence. This argument would require a robust leap of faith and logic: an assumption that the agreement in question was the pivot that persuaded thetrial court to make a finding that a prima facie case has been established. Needless to say, such a gymnastic leap is impermissible in the exercise of the court’s revisionary powers.
34.The applicant still has an opportunity to persuade the court that the impugned agreement is inauthentic or that it should be accorded very low probative value. The trial court has not yet ruled on those questions.
35.The upshot is that the request for revision dated 04/12/2021 is hereby dismissed. The matter before the Trial court shall proceed for defence hearing.